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Hong Kong Law Reform Commission |
1.1 When a child is taken away without consent or lawful
authority from a person who has the right to care for him, the child has been
abducted. When a child is removed in these circumstances across an
international border, this constitutes international child
abduction.[9] The focus of this
report is international parental child
abduction.[10] This situation
usually occurs when a relationship between two parents breaks down and one of
them, often in the face of a court order that he or she is unhappy with, takes
the law into their own hands and absconds with the children to another
country.
1.2 With the ease and frequency of foreign travel and the
relaxation of cross-border controls, combined with the upsurge in international
marriages and the resulting complications of children with dual nationality and
dual passports, the act of removing a child to another jurisdiction has become
relatively easy in recent times.[11]
Up until the 1980s however, there was little international co-operation on
parental child abduction, and custody and access orders made in one jurisdiction
were generally neither recognised nor enforceable in
another.[12]
“This state of international ‘anarchy’ operated as an encouragement to would-be abductors who, by appropriate forum shopping, could hope to take their children from one jurisdiction to another and there obtain judgment in their favour.” [13]
1.3 The
common law rules of private international law provide that the welfare of the
child is to be the paramount consideration in any proceedings concerning
children. This can be interpreted by the foreign court to mean, not that the
child should be returned promptly to his home jurisdiction in recognition of
pre-existing legal custody arrangements, but that the child should not be
returned given the new circumstances of the
case.[14] As one judge has
commented, “[a]nyone who has had experience of the exercise of this
delicate jurisdiction knows what complications can result from a child
developing roots in new soil, and what conflicts this can occasion in the
child’s life. Such roots can grow rapidly.”
[15] Another has observed that
"the pull of gravity from the country of origin diminishes at an accelerating
speed with the passage of
time."[16] The implication from
this is that the abducting parent can accrue an advantage by covering his tracks
and postponing a determination of the custody dispute for as long as
possible.[17] One writer has
commented:
“[t]o adopt a rule that has that result is contrary both to justice and common sense." [18]
1.4 With
divorce rates rising
dramatically[19] and the numbers of
abduction cases increasing,[20]
“the law has been hard-pressed to find a satisfactory
solution.”[21] However, as a
result of a Canadian initiative,[22]
the Hague Conference on Private International Law ratified the Convention on the
Civil Aspects of International Child Abduction ("the Hague Convention") on 25
October 1980. This Convention heralded a new international approach to
combating parental child
abduction.[23]
1.5 The
Convention’s stated aims are to secure the prompt and safe return of
children who have been wrongfully removed from one Convention country to
another, and to ensure that rights of custody and access under the law of one
contracting state are effectively respected in the other contracting
states.[24] The Convention is
currently in force in 72
jurisdictions,[25] including the
Hong Kong SAR.[26] The details of
the Hague Convention and its operation are examined further in Chapter
3.
1.6 The parent who snatches a child away from the other parent
presents a difficult problem in family
law.[27] What legal standard should
be applied to what is ordinarily an intra-family dispute? Should a
parent’s abduction of his own child be considered a criminal
act?[28]
1.7 The merits of
who should be awarded custody of the children in family proceedings are often
not clear-cut. Practical welfare considerations and a wish to maintain the
status quo for the children as far as possible usually play a large part in the
court’s decision. This can be further complicated in a situation where
the parents come from different homelands. One of the parents may find
themselves left with little support in a foreign country when the marriage
breaks down, so may feel they have no choice but to return "home" even though
their children are to remain behind with the other
parent.[29] In other cases, the
court may award custody of the children to a parent who subsequently re-locates
overseas, away from the access parent. In both situations, the right to
maintain contact with the children may become "little more than a legal
fiction"[30] for one of the parents.
It has been commented that the temptation to resort to self-help in such
cases "may be
overwhelming."[31]
1.8 Although
the numbers of cases involved are not yet
large,[32] international parental
child abduction is a problem of immense emotional proportions which is
fraught with practical
difficulties.[33]
"[I]t is hard to imagine anything more chilling than for a mother to return home to find her children have disappeared and then to receive a telephone call from the father saying that they are all in South America. The children in these cases will have suffered the trauma of the breakdown of their parents’ marriage. They are then uprooted from all that is familiar and important to them. Their world is turned upside down, and they become strangers in a foreign land. However resilient the child, that experience must be confusing, frightening, and, in the long run, damaging.”[34]
1.9 Children
who have been abducted by family members are sometimes physically and almost
always psychologically harmed as a result of their
abduction.[35] Many children in
these situations are told that the other parent is dead or no longer loves them.
They are often given new names by their abductor-parents and are instructed not
to reveal their real names or where they have come from. Because of the harmful
effects on children, parental child abduction has been characterized in some
quarters as a form of child
abuse.[36]
1.10 Parents
whose children have been abducted (the "left-behind" parents) will likely suffer
great emotional and financial hardships in their efforts to locate the children
and resolve the situation. Traumatic and expensive litigation may ensue as they
try to obtain the return of the children or the enforcement of court
orders.[37] As we have noted above,
unless international co-operation arrangements such as the Hague Convention can
be invoked, issues will arise as to which court should hear the merits of the
case for custody. Will it be the court of the child’s usual place of
residence, which may have already granted custody to the left-behind parent, or
the court of the country to which the child has lately been taken?
“[H]istorically courts have been jealous of their jurisdiction to decide matters regarding litigants who are present within that jurisdiction. The urge to refuse to cede jurisdiction is especially strong in family disputes where mother and father are from different cultures as well as countries. Both cultures, when applying the legal test of “best interests of the child”, apply it in an ethnocentric way ... Each culture [considers] its own way of ordering family relations when deciding cases such as this.” [38]
1.11 Two recent research studies have analysed and 'profiled'
parental child abduction cases in detail, and how these are handled under the
Hague Convention.[39] According to
the most recent of these studies, cases involving approximately 1,080 children
were actioned under the Convention in
1999.[40] Obviously, the number of
child abduction cases varied greatly from jurisdiction to jurisdiction. The
relevant authorities in the USA and England and Wales handled by far the largest
numbers of “incoming” applications (where the child was abducted
into that jurisdiction) and “outgoing” applications (where
the child was abducted out of that jurisdiction), with a combined total
of almost 50% of all Hague Convention cases handled
world-wide.[41]
1.12 In
terms of the usual mode of abduction of the child, the commentators on the 1996
statistics observed:
“In the popular consciousness the words ‘child abduction’ conjure up images of children snatched from school or from their homes, bundled into a car and whisked away to some distant land, usually by their fathers. According to our findings, however, such images are false. In our sample, fathers were responsible for only 27 per cent of the abductions, while the children’s mother was the abductor in 70 per cent of the cases, with grandparents and ‘others’ making up the remaining 3 per cent. Although our information on the nature of the abduction was limited, the child was ‘snatched’ or taken from school in only 4 per cent of the cases, while by contrast, 24 per cent of the cases involved one or other parent taking the child on holiday and failing to return.” [42]
1.13 As
to perceivable trends, the statistics from these studies indicated that:
1.14 Figures available for the period since 1 September
1997,[54] when the Hague Convention
was extended to the Hong Kong SAR, indicate that there have been 19 incoming and
18 outgoing cases of child abduction involving the Hong Kong SAR notified to the
authorities. The other jurisdictions concerned have included Argentina,
Australia, Brazil, Canada, France, Germany, Luxembourg, New Zealand, Panama,
Switzerland, Taiwan, the United Kingdom and the USA. A more detailed profile of
the incoming and outgoing cases for the year 1999 is noted
below.
1.15 The applications. Altogether the Central Authority
for the Hong Kong SAR under the Hague Convention handled six new applications in
1999. Four were incoming applications for the return of children abducted from
other jurisdictions and brought into Hong Kong. Two of these applications came
from England and Wales, the other two came from the USA and Canada respectively.
There were no incoming access applications. There were also two outgoing
applications made for the return of children abducted from Hong Kong to other
jurisdictions.
1.16 The taking persons. All the taking persons
were male. This is in stark contrast to the global norm, where 70% of taking
persons were female.[55] In two
applications, the taking person was a national of the requested state. In the
other two applications, the taking person had a different
nationality.
1.17 The children. There were applications for four
children in total abducted into Hong Kong in 1999. Each application was for a
single child and no sibling groups were involved. Two of the children were
under 4 years old and the other two were aged between 5 and 9 years old. Two of
the children were male and two were female.
1.18 The outcomes.
In 1999, all of the incoming applications made to Hong Kong from other
jurisdictions resulted in a judicial return, whereas globally, only 32.2% of
applications ended in judicial return. Hong Kong was the only
contracting state in the analysis where all incoming applications resulted in a
judicial return.
1.19 In 1999, the average length of time for a judicial
return of a child abducted into the Hong Kong SAR from another jurisdiction was,
remarkably, only 26 days. This is well within the six-week time limit implied
in Article 11(2) of the Convention and compares extremely favourably with the
handling time taken in other jurisdictions (the global norm for judicial returns
in 1999 being 87 days).
1.20 Parental abduction of children across international lines
might be considered by some as a form of child abuse. The child suffers the
trauma of being taken away from his home, from his custodial parent and other
family members, and of being taken to a foreign country with which he may have
little or no connection. Added to this, his abduction will be an extremely
harrowing experience for the child's left-behind family, particularly the
left-behind parent.
1.21 It is to be hoped that as more countries accede
to the Hague Convention on the Civil Aspects of International Child Abduction,
and as the provisions and practices under the Convention are developed
further,[56] this mechanism will
become increasingly successful in combatting international parental child
abduction, both from the point of view of returning abducted children and in
providing an effective deterrent to would-be child abductors.
1.22 The
objective of this report is to consider ways in which the current civil and
criminal law in Hong Kong might be strengthened, so as to better assist the
parties who are immediately affected by child abduction and the lawyers and
relevant authorities handling their cases. It should be noted that this report
focuses on the constituents of the law in this area rather than on the mechanics
of how the law is to be enforced.
1.23 Unfortunately, even with the best
legal provisions in place, the law itself can never be expected to prevent the
abduction of children in every case. What the law should strive to achieve,
however, is to minimise its likelihood as far as possible.
1.24 Our
recommendations and observations for reform of the law in this area are outlined
in Chapters 6 to 8 of the report.
[9] A Hutchinson, R Roberts & H Setright, International Parental Child Abduction (1998, Family Law) at 3.
[10] Other types of child abduction, such as kidnapping for ransom, abduction of children for sexual or other unlawful purposes, or baby-snatching by a stranger who attempts to keep the child as her own (see Dr S Edwards, “The Child Abduction Agony” (1990) New Law Journal 59), are not the subject of this report.
[11] S Davis, J Rosenblatt & T Galbraith, International Child Abduction (1993, Sweet & Maxwell) at vii.
[12] NV Lowe & G Douglas, Bromley’s Family Law (9th ed, 1998, Butterworths) at 479. (This remains largely the case today in respect of child abductions to countries where the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is not in force: see the discussion below in Chapter 4.)
[13] Lowe & Douglas, above, at 479.
[14] B Davis, "The New Rules on International Child Abduction: Looking Forward to the Past" (1990) 1 Australian Journal of Family Law 31, at 33-34.
[15] Mr Justice Wall, “English Judicial Attitudes to the Hague and European Conventions on International Child Abduction,” paper presented at the International Federation of Women Lawyers (FIDA) Convention, Hong Kong, 1996, at 1.
[16] By Ormrod LJ in re R (Minors) (1981) 2 FLR 416, at 427.
[17] B Davis, above, at 34.
[18] Idem.
[19] See, for example, the Hong Kong statistics noted in the Preface, above, at footnote 5.
[20] See statistics given in the following studies: N Lowe & A Perry, “International Child Abduction: The English Experience” (1999) 48 International and Comparative Law Quarterly 127; and Prof N Lowe, S Armstrong & A Mathias, "A Statistical Analysis of Applications made in 1999 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction" (2001) Preliminary Document No 3 of March 2001 for the attention of the Special Commission, Hague Conference on Private International Law. The findings of these two studies are discussed in more detail later in this chapter.
[21] Davis, Rosenblatt & Galbraith, above, at vii.
[22] Prof JD McClean, "Migratory divorce in a mobile society - child stealing, forum shopping and the child's interests," paper delivered at 7th Commonwealth Law Conference, 18-23 September 1983, Hong Kong.
[23] Dr Athena Liu, Family Law for the Hong Kong SAR (1999, HKU Press) at 334.
[24] See Preamble to the Hague Convention. The Convention has been described as “a hot pursuit remedy,” with its aim of concluding cases for the return of children, at both first instance and on appeal, within six weeks: see Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478, at 488, per Thorpe LJ. In most jurisdictions, however, this objective is rarely met in practice: see discussion below at para 1.13; though the Hong Kong SAR appears to be an exception: see para 1.19 below.
[25] These include the following states and territories: Argentina, Australia, Austria, The Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands and Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Fyrom (the former Yugoslav Republic of Macedonia), Georgia, Germany, Greece, Guatemala, Honduras, Hong Kong SAR of China, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Luxembourg, Macau SAR of China, Malta, Mauritius, Mexico, Republic of Moldova, Monaco, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, United States of America, Uruguay, Uzbekistan, Venezuela, Yugoslavia and Zimbabwe. List provided as at 22 March 2001: refer website of the Hague Conference on Private International Law, “Hague Conventions: Signatures, Ratifications and Assessions,” at: <www.hcch.net/e/status/statmtrx.html>. Note that the Convention may not necessarily be in force between all 72 states and territories at the same time. For the Hong Kong SAR position, see note 18 below.
[26] By virtue of the Child Abduction and Custody Ordinance (Cap 512). The Hague Convention first came into force as between Hong Kong and a number of contracting states and territories to the Convention on 1 September 1997: see Child Abduction and Custody (Parties to Convention) Order, LN 36 of 1998 which was made under section 4 of the CACO. For the current position on those contracting states and territories with which the Convention has come into force with the Hong Kong SAR, see the most recent order made under section 4: the Child Abduction and Custody (Parties to Convention) Order, LN 302 of 1999. For further information on parental child abduction and the HKSAR, see (from mid-2002) the website on this topic included on the Department of Justice Homepage at <www.info.gov.hk/justice/>.
[27] Dr Liu, above, at 333.
[28] D Bedingfield, The Child in Need: Children, the State and the Law (1998, Family Law) at 435. Note that in some jurisdictions parental child abduction has been criminalised: see Chapter 5, below. For our own position on this issue, see Chapter 6, paras 6.9 et seq, below.
[29] For a more detailed discussion, see papers by Mr Justice Kay, Family Court of Australia: "The Hague Convention - Order or Chaos?" (1994) Family Law Conference, Adelaide; and, “The Hague Convention – An update on a paper first delivered to Family Law Conference in Adelaide 1994” (1997) Family Law Conference, San Francisco.
[30] B Davis, above, at 33.
[31] Idem.
[32] Eg, in the Hong Kong SAR’s case, there have been, since 1997, only 18 cases of parental child abduction reported to the authorities where the children have been taken out of Hong Kong to another jurisdiction. In the same period there have also been 19 reported cases of children being abducted into Hong Kong from elsewhere. (Figures provided by the Hong Kong SAR Central Authority under the Hague Convention.) Figures world-wide for cases of parental child abduction are on the increase, with 1,080 cases documented in 1999: see Lowe, Armstrong & Mathias, above.
[33] Davis, Rosenblatt & Galbraith, above, at vii.
[34] Hansard House of Lords Debate, Vol 460 col 1257, per Lord Meston (5 March 1985, regarding the then UK Child Abduction and Custody Bill).
[35] Mr Justice Kay, “The Hague Convention – An update on a paper first delivered to Family Law Conference in Adelaide 1994,” above, at 1.
[36] P M Hoff, “Parental Kidnapping: Prevention and Remedies,” in Parental Abduction Training and Dissemination Project (May 1997, ABA Centre on Children and the Law) at 1.
[37] Mr Justice Kay, above, at 1.
[38] Bedingfield, above, at 435. Another writer goes further: "the welfare principle is vague and indeterminate; more a sociological standard that a juridical one. It provides answers which can be used to justify almost any conclusion a judge wants to reach. And it is even worse in cases of international child abduction. In such cases the welfare principle may be no more than a cloak for the particular cultural values of the country of refuge, which, in effect, imposes those values on the community from which the children were removed": see B Davis, above, at 34. Davis notes (at his footnote 21) the contrasting cases of In the Marriage of F and K Raja Bahrin (1986) 11 Fam LR 233 (where the decision of the Australian Family Court appeared to be based on the fear that the wife would not receive justice from the Kadil court in Malaysia) and Reihana (1980) 6 Fam LR 134 and Schwarz (1985) 10 Fam LR 235 (where the Court had no such fears with respect to the civil courts in New Zealand or the rabbinical courts in Israel).
[39] Lowe & Perry, above (study published in 1999 detailing Hague Convention figures for 1996); and Lowe, Armstrong & Mathias, above (study published in 2001 detailing Hague Convention figures for 1999). Note: the first study concerned cases handled by the Central Authority for England and Wales under the Hague Convention, which has the second largest caseload – after the USA – of all the Hague Convention’s contracting states.
[40] The figure of 1,080 cases did not represent the full picture however, as it did not include abductions to non-Convention countries or abductions actioned through other international arrangements or by way of application made directly to domestic courts: Lowe, Armstrong & Mathias, above, at 5.
[41] Eg, authorities in England and Wales reportedly handled 329 cases in total under the Hague Convention in 1999. This included 149 incoming applications which represented 20% of the world total: Lowe, Armstrong & Mathias, above, at 5-6.
[42] Lowe & Perry, above, at 132-133, who note however that, “it may well be that different patterns exist among abductions to non-Convention countries.” Compare also the Hong Kong SAR position, at para 1.16 below.
[43] Lowe, Armstrong & Mathias, above, at 5.
[44] Lowe & Perry, above, at 132.
[45] Lowe, Armstrong & Mathias, above, at 11.
[46] Lowe & Perry, above, at 132.
[47] Lowe, Armstrong & Mathias, above, at 7; though see para 1.16, below, regarding the HKSAR.
[48] Lowe & Perry, above, at 133.
[49] Idem.
[50] Lowe, Armstrong & Mathias, above, at 8.
[51] Lowe, Armstrong & Mathias, above, at 12. However, the authors of the study note (at 13) that for some jurisdictions the figures varied greatly from the global norms: “All 4 applications to Hong Kong resulted in judicial return. 8 out of 10 applications to Scotland ended in a voluntary return, 3 out of 4 applications received by Colombia were rejected, and 7 out of 9 applications to Austria were judicially refused.”
[52] Lowe, Armstrong & Mathias, above, at 29.
[53] Lowe, Armstrong & Mathias, above, at 29-30.
[54] Supplied by the Civil Division of the Department of Justice, which is designated as the Central Authority for the HKSAR for the purposes of the Hague Convention. For further information on parental child abduction and the HKSAR, see (from mid-2002) the website on this topic included on the Department of Justice Homepage at <www.info.gov.hk/justice/>.
[55] Bosnia and Herzegovina (where there were three cases) was the only other contracting state in the analysis where all the taking persons were male. Conversely, in applications to Hungary (where there were eight cases) and Iceland (where there were four cases), all the taking persons were female.
[56] Since its inception in 1980, there have been four meetings of the Special Commission set up to review the operation of the Hague Convention. At these meetings, contracting states and interested individuals and organisations make reports, and offer recommendations as to how the operations of the Convention could be improved. The most recent meeting of the Special Commission took place on 22-28 March 2001.